Section 337 Investigations at the International Trade Commission

Venable's ITC team has extensive experience managing complex patent cases before the ITC. These cases have involved a full range of complex technologies, including chemical compounds, semiconductor devices, pharmaceuticals, electrical and mechanical devices, and software. These actions have involved diverse issues, ranging from patent infringement to trade secret misappropriation and trade dress infringement.

Parties involved in ITC investigations require counsel who not only are skilled intellectual property attorneys and litigators, but who also have deep experience managing ITC investigations. Venable is one of the most active firms in the United States handling Section 337 investigations. Over the last several years, Venable has represented the complainant or at least one respondent in approximately 10% of all Section 337 investigations.

Section 337 investigations at the ITC proceed quickly and are usually completed within 16 months from the institution of the investigation. Typically the ITC holds a hearing (i.e., trial) about 9 months from the filing of the complaint. Respondents can quickly find themselves at a significant disadvantage unless they swiftly take steps to position themselves for a successful outcome. Thus, preparation of the defense should commence as soon as possible, as the response to the complaint must be filed weeks after the investigation is instituted, and discovery will begin almost immediately.

Discovery in ITC investigations proceeds much faster than in a typical district court action, and the deadlines for responses to motions, responding to discovery requests, and the like are short. Moreover, in comparison to U.S. district court litigation, extensions on deadlines are much less likely to be granted in the ITC, where the Commission closely monitors the administrative law judges to ensure that investigations are concluded by a set target date.

Another substantial difference is that counsel from the ITC's Office of Unfair Import investigation (OUII) may take part in an investigation. The OUII acts as a neutral party representing the public interest in the investigations. The OUII participates in the investigations through its staff attorneys, who file briefs, participate in discovery, offer opening statements, and examine witnesses, much like the private parties. The presence of the OUII in ITC investigations creates a unique dynamic when compared to federal district court litigation.